This right applies in the workplace, but defining the extent of the right has proved difficult. A recent case in the European Court of Human Rights (ECtHR) confirmed that the right covered ‘correspondence’ which included communications sent via a work account.

Where, therefore, an employee’s communications are being covertly monitored by his employer, the starting point is that such monitoring is likely to infringe the employee’s Article 8 rights unless the employer has both given notice to the employee that such monitoring may take place, and secondly there are legitimate reasons to justify covert surveillance and that such surveillance is proportionate in the circumstances.

In another case the ECtHR considered the use of covert surveillance cameras used in connection with theft detection.

The court found that the employer had legitimate reasons for the surveillance (namely the high level of theft), that there was no other reasonable method of detecting the culprits, and that the monitoring had been proportionate in terms of the area in which it took place and the period over which it continued.

In the UK, the Information Commissioner’s Office guidance states that it would be rare for covert monitoring of employees to be justified, and that it should only be done in exceptional circumstances. The guidance is a good starting point for any employer considering covert surveillance of any kind.

Whether an employer is looking to use camera surveillance or to monitor email or other digital traffic, the minimum requirement is for an employer to have in place a policy regarding such surveillance which has been communicated to all staff. This step will open the door to the possible use of covert surveillance, but an employer should only carry it out where there are exceptional circumstances, and the employer believes there are no other effective and legitimate ways of dealing with the issue.

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